government on earth, general or particular, and what no just government

”

should refuse, or rest on inference.

THOMAS JEFFERSON1

Robert and Sarisse Creighton and their three children were asleep

when FBI agents and local police broke into their home in the middle of

the night. Brandishing guns, the ofﬁcers searched the house for a relative

of the Creightons who was suspected of bank robbery. When asked to

show a search warrant, the ofﬁcers said, “You watch too much TV.” The

suspect was not there, and the ofﬁcers left as abruptly as they had entered.

The Creightons sued the FBI agent in charge, Russell Anderson, for violating their Fourth Amendment right against unlawful search.

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The Creightons won a temporary victory when the U.S. Circuit Court

of Appeals for the Eighth Circuit—noting that individuals are constitutionally protected against warrantless searches unless ofﬁcers have good

reason (“probable cause”) for a search and unless they have good reason

(“exigent circumstances”) for conducting that search without a warrant—

concluded that Anderson had been derelict in his duty. In the judgment

of the appellate court, Anderson should have sought a warrant from a

judge, who would have decided whether a search of the Creightons’ home

was justiﬁed.

The Supreme Court of the United States overturned the lower court’s

ruling. The Court’s majority opinion stated: “We have recognized that it

is inevitable that law enforcement ofﬁcials will in some cases reasonably

but mistakenly conclude that probable cause is present, and we have indicated that in such cases those ofﬁcials . . . should not be held personally

liable.” Justice John Paul Stevens and two other justices sharply dissented.

Stevens accused the Court’s majority of showing “remarkably little

ﬁdelity” to the Fourth Amendment.2 Civil liberties groups claimed that

the Court’s decision gave police an open invitation to invade people’s

homes on the slightest pretext. On the other hand, law enforcement ofﬁcials praised the decision, saying that a ruling in the Creightons’ favor

would have made them hesitant to pursue suspects for fear of a lawsuit

whenever the search failed to produce the culprit.

As this case illustrates, issues of individual rights are complex and political. No right is absolute. For example, the Fourth Amendment protects

Americans not from all searches but from unreasonable searches. The public would be unsafe if law ofﬁcials could never pursue a suspect into a

home. Yet the public would also be unsafe if police could invade homes

anytime they wanted. The challenge for a civil society is to establish a

level of police authority that balances the demands of public safety with

those of personal freedom. The balance point, however, is always subject

to dispute. Did FBI agent Anderson have sufﬁcient cause for a warrantless search of the Creightons’ home? Or was his evidence so weak that

his forcible entry constituted an unreasonable search? Not even the justices of the Supreme Court could agree on these questions. Six justices

sided with Anderson, and three backed the Creightons’ position.

This chapter examines issues of civil liberties, specific individual

rights, such as freedom of speech and protection against self-incrimination,

that are constitutionally protected against infringement by government.

As seen in Chapter 2, the Constitution’s failure to enumerate individual

freedoms led to demands for the Bill of Rights (see Table 4–1).

Enacted in 1791, these first ten amendments to the Constitution specify

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Chapter 4: Civil Liberties: Protecting Individual Rights

table

4-1

111

The Bill of Rights: A Selected List

of Constitutional Protections

The Bill of Rights refers to the ﬁrst ten amendments to the Constitution,

which include protections of individual rights.

First Amendment

Speech: You are free to say

almost anything except that

which is obscene, slanders

another person, or has a high

probability of inciting others to

take imminent lawless action.

Assembly: You are free to

assemble, although government

may regulate the time and place

for reasons of public convenience

and safety, provided such regulations are applied evenhandedly to

all groups.

Religion: You are protected from

having the religious beliefs of

others imposed on you, and you

are free to believe what you like.

Fourth Amendment

Search and seizure: You are

protected from unreasonable

searches and seizures, although

you forfeit that right if you

knowingly waive it.

Arrest: You are protected from

arrest unless authorities have

probable cause to believe you

have committed a crime.

Fifth Amendment

Self-incrimination: You are protected against self-incrimination,

which means that you have the

right to remain silent and to be

protected against coercion by law

enforcement ofﬁcials.

Double jeopardy: You cannot

be tried twice for the same crime

if the ﬁrst trial results in a verdict

of innocence.

Due process: You cannot be

deprived of life, liberty, or

property without proper legal

proceedings.

Sixth Amendment

Counsel: You have a right to be

represented by an attorney and

can demand to speak ﬁrst with

an attorney before responding to

questions from law enforcement

ofﬁcials.

Prompt and reasonable

proceedings: You have a right

to be arraigned promptly, to be

informed of the charges, to

confront witnesses, and to have

a speedy and open trial by an

impartial jury.

Eighth Amendment

Bail: You are protected against

excessive bail or ﬁnes.

Cruel and unusual

punishment: You are protected from cruel and unusual

punishment, although this

provision does not protect you

from the death penalty or from

a long prison term for a minor

offense.

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certain rights of life, liberty, and property that the national government

is obliged to respect. A later amendment, the Fourteenth, became

the basis for protecting these rights from actions by state and local

governments.

Rights have full meaning only as they are protected in law. A constitutional guarantee of free speech, for example, is worth no more than the

paper on which it is written if authorities can stop people from speaking

freely. Judicial action is important in deﬁning what people’s rights mean

in practice and in setting limits on ofﬁcial action. In some areas, the judiciary devises a speciﬁc test to determine whether government action is

lawful. A test applied in the area of free speech, for example, is whether

general rules (such as restrictions on the time and place of a public gathering) are applied fairly. Government ofﬁcials do not meet this test if they

apply one set of rules for groups they like and a harsher set of rules for

those they dislike.

Issues of individual rights have become increasingly complex. The writers of the Constitution could not possibly have foreseen the United States

of the early twenty-ﬁrst century, with its huge national government, enormous corporations, pervasive mass media, urban crowding, and vulnerability to terrorist acts. These developments are potential threats to

personal liberty, and the judiciary in recent decades has seen ﬁt to expand

the rights to which individuals are entitled. However, these rights are constantly being balanced against competing rights and society’s collective

interests. The Bill of Rights operates in an untidy world where people’s

highest aspirations collide with their worst passions, and it is at this juncture that issues of civil liberties arise. Should an admitted murderer be

entitled to recant a confession? Should the press be allowed to print military secrets whose publication might jeopardize national security? Should

extremist groups be allowed to publicize their messages of prejudice and

hate? Such questions are among the subjects of this chapter, which focuses

on these points:

★ Freedom of expression is the most basic of democratic rights, but, like all

rights, it is not unlimited. Free expression recently has been strongly

★ Individual rights are constantly being weighed against the demands of

majorities and the collective needs of society. All political institutions are

involved in this process, as is public opinion, but the judiciary plays

the central role in it and is the institution that is most partial to the

protection of civil liberties.

Freedom of Expression

Freedom of political expression is the most basic of democratic rights.

Unless citizens can openly express their political opinions, they cannot

properly inﬂuence their government or act to protect their other rights.

As the Supreme Court concluded in 1984, “The freedom to speak one’s

mind is not only an aspect of individual liberty—and thus a good unto

itself—but also is essential to the common quest for truth and the vitality of society as a whole.”3

The First Amendment provides the foundation for freedom of

expression—the right of individual Americans to hold and communicate

views of their choosing. For many reasons, such as a desire to conform

to social pressure or a fear of harassment, Americans do not always choose

to express themselves freely. Moreover, freedom of expression, like other

rights, is not absolute. It does not entitle individuals to say or do whatever they want, to whomever they want, whenever they want. Free expression can be denied, for example, if it endangers national security, wrongly

damages the reputations of others, or deprives others of their basic freedoms. Nevertheless, the First Amendment provides for freedom of

expression by prohibiting laws that would abridge the freedoms of conscience, speech, press, assembly, and petition.

Free expression is vigorously protected by the courts. Today, under

most circumstances, Americans can freely express their political views

without fear of governmental interference. In earlier times, however,

Americans were less free to express their opinions.

The Early Period: The Uncertain Status

of the Right of Free Expression

The first attempt by the U.S. government to restrict free expression

was the Sedition Act of 1798, which made it a crime to print harsh criticisms of the president or other national officials. Thomas Jefferson

called the Sedition Act an “alarming infraction” of the Constitution

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Exercising their right of free speech and assembly, antiabortion protesters gather outside a

government building. Individuals do not have a constitutional right to demonstrate in any

place at any time, but government is required to accommodate requests for marches and other

displays of free expression.

and, upon replacing John Adams as president in 1801, pardoned the newspaper publications who had been convicted

under it. Because the Supreme Court did not review the sediHistorical

Background tion cases, however, the judiciary’s position on free expression

was an open question. The Court also did not rule on free

speech during the Civil War era, when the government severely restricted

individual rights.

In 1919 the Court ﬁnally ruled on a free-expression case. The defendant had been convicted under the 1917 Espionage Act, which prohibited

forms of dissent, including the distribution of antiwar leaﬂets, that could

harm the nation’s effort in World War I. In Schenck v. United States (1919),

the Court unanimously upheld the constitutionality of the Espionage Act.

In the opinion written by Justice Oliver Wendell Holmes, the Court said

that Congress could restrict speech that was “of such a nature as to create

a clear and present danger” to the nation’s security. In a famous passage,

Holmes argued that not even the First Amendment would permit a person

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115

to falsely yell “Fire!” in a crowded theater and create a panic that could

kill or injure innocent people.4

Although the Schenck decision upheld a law that limited free expression, it also established a standard—the clear-and-present-danger

test—for determining when government had exceeded its constitutional

authority to restrict speech. Political speech that was a clear and present

danger could be banned by government. Speech that did not pose such a

danger could not be banned. (The clear-and-present-danger test was later

replaced by the imminent-lawless-action test, which is discussed later in

the chapter.)

The Modern Period: Protecting Free Expression

Until the twentieth century, the tension between national security interests and free expression was not a pressing issue in the United States. The

country’s great size and ocean barriers provided protection from potential enemies, minimizing concerns about internal subversion. World War I,

however, intruded on America’s isolation, and World War II brought it

to an abrupt end. Since then, Americans’ rights of free expression have

been deﬁned largely in the context of national security concerns.

Free Speech During the cold war that developed after World War II,

many Americans believed that the Soviet Union was bent on destroying

the United States, and the Supreme Court allowed government to limit

certain types of expression. In 1951, for example, the Court upheld the

convictions of eleven members of the U.S. Communist party who had

been prosecuted under a law that made it illegal to express support for

the forceful overthrow of the U.S. government.5 By the late 1950s, however, fear of internal communist subversion was subsiding, and the

Supreme Court expanded the scope of free speech.6 The

Court implicitly embraced a legal doctrine ﬁrst outlined by

Justice Harlan Fiske Stone in 1938. Stone argued that First

Amendment rights of free expression are the basis of AmerHistorical

Background icans’ liberty and ought to have a “preferred position” in the

law. If government can control what people know and say, it

can manipulate their opinions and thereby deprive them of the right to

govern themselves. Therefore, government should be broadly prohibited

from restricting free expression.7

This philosophy has led the Supreme Court to rule that government

officials must show that national security is directly and substantially

imperiled before they can lawfully prohibit citizens from speaking out.

For example, during the Vietnam era, despite the largest sustained protest

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movement in America’s history, not a single individual was convicted solely

for criticizing the government’s war policy. (Some dissenters were found

guilty on other grounds, such as inciting riots and assaulting the police.)

The Supreme Court’s protection of symbolic speech has been less

substantial than its protection of verbal speech. For example, the Court

in 1968 upheld the conviction of a Vietnam protester who had burned his

draft registration card. The Court concluded that the federal law prohibiting the destruction of draft cards was intended primarily to protect

the military’s need for soldiers, not to prevent people from criticizing

government policy.8

The Supreme Court, however, has not granted the government broad

power to restrict symbolic speech. In 1989, for example, the Court ruled

that the symbolic burning of the American ﬂag is a lawful form of expression. The ruling came in the case of Gregory Lee Johnson, who had set

ﬁre to a U.S. ﬂag outside the hall in Dallas where the 1984 Republican

National Convention was being held. The Supreme Court rejected the

state of Texas’s argument that ﬂag burning is, in every instance, an imminent

danger to public safety. “If there is a bedrock principle underlying

the First Amendment,” the Court ruled in the Johnson case, “it is that the

Government may not prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable.”9 (A year later

the Court struck down a new federal statute that would have made it a federal crime to burn or deface the ﬂag.10)

Press Freedom and Prior Restraint Freedom of the press has also

received strong judicial protection in recent decades. In New York Times

Co. v. United States (1971), the Court ruled that the Times’s publication

of the “Pentagon papers” (secret government documents revealing that

ofﬁcials had deceived the public about aspects of the Vietnam War) could

not be blocked by the government, which claimed that publication would

hurt the war effort. The documents had been illegally obtained by antiwar activists, who then gave them to the Times. The Court ruled that “any

system of prior restraints” on the press is unconstitutional unless the government can clearly justify the restriction.11

The unacceptability of prior restraint—government prohibition of

speech or publication before the fact—is basic to the current doctrine of

free expression. The Supreme Court has said that any attempt by government to prevent expression carries “a ‘heavy presumption’ against its

constitutionality.”12 News organizations are legally responsible after the

fact for what they report or say (for example, they can be sued by an individual whose reputation is wrongly damaged by their words), but generally